WALENT VS. PETTERSON (CHILD CUSTODY)

Statutes cited

Key holdings

Practitioner summary

The Court of Appeals reviewed the child custody modification for an abuse of discretion, noting that "the district court must have reached its conclusions for the appropriate reasons." Ellis v. Carucci, 123 Nev. 145, 149, 161 P.3d 239, 241-42 (2007). While the district court's decisions are reviewed deferentially, the court must apply the correct legal standard, and no deference is owed to legal error or to findings "so conclusory they mask legal error." Davis v. Ewalefo, 131 Nev. 445, 450-51, 352 P.3d 1139, 1142-43 (2015); Williams v. Waldman, 108 Nev. 466, 471, 836 P.2d 614, 617-18 (1992). The governing framework is that the sole consideration in a custody determination is the best interest of the child. NRS 125C.0035(1); Davis, 131 Nev. at 451, 352 P.3d at 1143. The district court's order "must tie the child's best interest, as informed by specific, relevant findings respecting the [best interest factors] and any other relevant factors, to the custody determination made." Davis, 131 Nev. at 451, 352 P.3d at 1143. Absent specific findings and an adequate explanation, the reviewing court cannot determine whether the custody determination was appropriate. Id. at 452, 352 P.3d at 1143. Applying that framework, the court held the district court's order failed to make specific, relevant findings as to the best interest factors. Although the order noted that the child was unhappy, failed to get along with Heather, and had missed several days of school—all potentially relevant to the best interest factors—the district court did not make findings as to each factor or tie its findings to the custody determination. See Lewis v. Lewis, 132 Nev. 453, 460, 373 P.3d 878, 882 (2016) (holding that a district court abuses its discretion in modifying custody if it "fail[s] to set forth specific findings as to all of [the best interest] factors"). The court therefore could not say with assurance that the modification was made for appropriate legal reasons and remanded, directing the district court to make specific findings supporting any custody order should it determine modification is warranted. In a footnote, the court addressed Kyle's contention that the district court, after the notice of appeal was filed, reconsidered and again modified custody to restore joint physical custody. The court explained that an order reconsidering a decision is only properly before the appellate court if entered prior to the notice of appeal being filed. Arnold v. Kip, 123 Nev. 410, 416-17, 168 P.3d 1050, 1054 (2007). It further noted that the timely filing of a notice of appeal divests the district court of jurisdiction to revisit issues pending before the appellate court, except as to collateral matters. Mack-Manley v. Manley, 122 Nev. 849, 855, 138 P.3d 525, 529-30 (2006). If the district court intends to modify its order after a notice of appeal is filed, it must certify its intent, and a party must file a motion with the appellate court (attaching the certification) seeking remand for entry of the modifying order. Foster v. Dingwall, 126 Nev. 49, 53, 228 P.3d 453, 455 (2010). Because neither party followed this procedure, the court did not further address the argument.

In plain language

This case involves two parents, Heather Walent and Kyle Petterson, who share a child. Kyle first started the case back in June 2012 by filing to establish that he was the father and to set up custody. Under the resulting order, the parents shared joint legal custody (the right to make major decisions about the child), and Heather had primary physical custody (the child lived mostly with her). Later, the court changed the arrangement so that both parents shared joint legal and joint physical custody. In November 2021, Heather asked the court to order the family to attend group therapy because she was struggling with the child's behavior. Kyle did not formally oppose that request, but he filed his own motion asking to change custody. The district court denied Kyle's motion on paper but said all custody and visitation issues would be dealt with at the hearing already scheduled on Heather's therapy request. After that hearing, the district court changed custody and gave Kyle primary physical custody. The court briefly stated that circumstances had changed enough to justify a change and that giving Kyle primary physical custody was in the child's best interest, but it did not spell out detailed reasons. Heather appealed, arguing the court did not explain its decision well enough. The Court of Appeals agreed that the district court's order did not contain the specific findings the law requires. When deciding custody, a court must focus on what is best for the child and must connect specific findings about the recognized "best interest" factors to the decision it reaches. Here, the order mentioned that the child was unhappy, was not getting along with Heather, and had missed several days of school, but it did not make findings on each of the required best-interest factors or tie those findings to the custody decision. Because the appeals court could not tell whether the custody change was made for the right legal reasons, it reversed the decision and sent the case back. On remand, if the district court again decides to change custody, it must make specific findings that support its order. The opinion also addressed a side issue. Kyle claimed that, after the appeal was filed, the district court had reconsidered and changed custody again to return the parties to joint physical custody. The Court of Appeals explained that this later order was not properly before it, because once a notice of appeal is filed, the district court generally loses the power to change the very issues that are on appeal unless a specific certification-and-remand procedure is followed, which did not happen here.